MPAA sympathetic to returning legitimate Megaupload files

Court documents reveal conciliatory tone

The Motion Picture Ass. of America has indicated it wouldn't oppose users of the now-defunct Megaupload file-sharing service retrieving their data – if it isn't pirated.

The Electronic Frontier Foundation (EFF) filed a legal suit with Megaupload user Kyle Goodwin for the return his files from the service, which was shut down after a raid on the home of Megaupload founder Kim Dotcom in New Zealand. Dotcom is currently on trial, charged with causing $500m of damage to the media industry and illegally earning $175m in fees from Megaupload and associated businesses.

US government investigators have warned that much of the information stored on the site may be lost, and that they are finished scanning it. Hosting companies Carpathia Hosting and Cogent Communications now want to delete the 25 petabytes of data they hosted for Megaupload, since it's costing them $9,000 a day to store. But the MPAA appears to be saying some data could be returned, or at least indicating that it wouldn't oppose such a move.

"In the current motion, Mr. Goodwin asks the Court to exercise its equitable jurisdiction to allow him access to the Mega Servers to retrieve material he previously uploaded to Megaupload," MPAA's lawyers write in a brief to the court. "The MPAA Members are sympathetic to legitimate users who may have relied on Megaupload to store their legitimately acquired or created data, although the Megaupload terms of use clearly disclaimed any guarantee of continued access to uploaded materials."

But there is a caveat. If files are going to be handed back, then the MPAA needs to be sure that none of the material infringes copyright – which would presumably involve scanning them all – and mechanisms need to be set up so that the original operators of Megaupload can't get any access to the system.

Not that most of them are allowed near a computer these days, since the extradition hearings for Kim Dotcom and colleagues Mathias Ortmann, Fin Batato, and Bram Van der Kolk are still ongoing, although there are serious doubts about the ability of US prosecutors to obtain a conviction, after the trial revealed a string of potential failures in the initial investigation and arrests.

On Thursday, Megaupload's lawyer Willie Akel accused the FBI of breaking the law when its investigators arrived in New Zealand, copied seven hard drives, and sent the information back to the US without local police knowing what was happening. "If [they] went offshore without the consent of the attorney-general, it was an illegal act," he said, local media Stuffreports.

However the prosecution offered the defense that the only material to have been sent abroad was data, and since the physical drives remained in the country, no breach of the law had taken place. The presiding judge asked the Crown lawyer John Pike to undertake to return data that was not relevant to the trial, but Pike said this may not be possible.

"Police, to put it bluntly, would not have a clue what is relevant and what is not relevant. How could they?" he said. ®